P.S. Saboo v. The Honourable Lieutenant Governor And ORS.

IN THE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE [ CIRCUIT BENCH AT PORT BLAIR ] *** PRESENT: THE HON'BLE JUSTICE AMRITA SINHA WPA/1069/2023 P. S. SABOO ... PETITIONER Vs.

THE HON'BLE LIEUTENANT GOVERNOR AND OTHERS ... RESPONDENTS For the petitioner :

Mr. Gopala Binnu Kumar For the respondents :

Mr. Shatadru Chakraborty, Sr. Adv Mr. Dibesh Dwivedi Heard on :

05th December, 2024 Judgment on :

16th December, 2024 AMRITA SINHA, J.

1.

The order of dismissal passed by the disciplinary authority affirmed by the appellate authority is the subject matter of challenge in the instant writ petition.

2.

The petitioner suffers from 80% locomotor disability. He was appointed in the post of Work Charged Mazdoor on 21st July, 1988

in the Municipal Council, Port Blair. He claims that he is the branch President of All India Crime Reform Organization in the Islands on and from the year 2012. The said organization is a nonprofit making one and works to eradicate corruption and social evils. 3.

A show cause notice, with two charges, was issued to the petitioner on 05th February, 2014 by the Secretary of the Municipal Council directing him to explain within seven days why disciplinary action should not be taken against him for violation of Rule 6 of the CCS (Conduct) Rules, 1965 read with Rule 27 of the A & N Islands Municipal Service (Classification, Control and Appeal) Rules, 2008 and also for violation of sub-rule 1 and 23 of Rule 3 of the CCS (Conduct) Rules, 1965 read with Rule 27 of the A & N Islands Municipal Service (Classification, Control and Appeal) Rules, 2008. 4.

The petitioner duly submitted his reply within the stipulated time period. He was suspended on 14th March, 2014 on the contemplation of initiation of a disciplinary proceeding.

memorandum dated 17th April, 2014 along with five articles of charges framed against him was served by the Secretary of the Municipal Council and he was directed to submit his defense within fourteen days.

5.

First charge was violation of Rule 6 of the CCS (Conduct) Rules, 1964 read with Rule 27 of the A & N Islands Municipal Service (Classification, Control and Appeal) Rules, 2008. Second

charge was violation of Rules 3 and 7 of the CCS (Conduct) Rules, 1964, Rule 11 of CCS (CCA) Rules, 1964 read with Rule 27 of the A & N Islands Municipal Service (Classification, Control and Appeal) Rules, 2008. Third charge was violation of sub-rule 1 and 23 of Rule 3 of the CCS (Conduct) Rules, 1964 read with Rule 27 of the A & N Islands Municipal Service (Classification, Control and Appeal) Rules, 2008. Fourth charge was violation of Rule 32(2)(a) of CCS (Leave) Rules, 1972 read with Rule 27 of the A & N Islands Municipal Service (Classification, Control and Appeal) Rules, 2008 and the fifth charge was violation of sub-rule 23 of Rule 3 of the CCS (Conduct) Rules, 1964 read with Rule 27 of the A & N Islands Municipal Service (Classification, Control and Appeal) Rules, 2008. 6.

The petitioner filed his statement denying the charges leveled against him. An Inquiry Officer was appointed for conducting inquiry. During pendency of the disciplinary proceeding the order of suspension was revoked vide order dated 13th August, 2015 with effect from 11th September, 2014, pending finalization of the disciplinary proceeding.

7.

On conclusion of inquiry the disciplinary authority imposed major penalty of dismissal from service on 29th November, 2019. 8.

Being aggrieved by the order of dismissal a statutory appeal was preferred before the Administrator, A & N Islands and the

Appellate Authority set aside the order of penalty of dismissal and directed the disciplinary authority to re-inquire the matter. 9.

In accordance with the same the Secretary, Municipal Council appointed a different Inquiry Officer to re-inquire and conclude the inquiry before 31st October, 2020. The re-inquiry was conducted and the penalty of dismissal from service was again passed. The petitioner again preferred a statutory appeal and this time the order of dismissal stood affirmed. Challenging the same the instant writ petition has been filed.

10.

Specific case of the petitioner is that the evidence of the witnesses was not properly appreciated either by the Disciplinary Authority or by the Appellate Authority. The initial show cause issued to the petitioner was in respect of two charges. The Disciplinary Authority expanded the scope of the proceeding from two charges to five charges, which is not permissible in law. The punishment given to the petitioner is absolutely disproportionate to the charges leveled against him.

11.

The respondent authority ought to have appreciated that the petitioner is a specially abled person and he is fighting to expose corruption in the department and that is the reason the authority deliberately dismissed him from service so that the illegal activities of the officers are not brought to light. It has been submitted that the petitioner has not done any activity which is unbecoming of a

government servant. He has not committed any misconduct as alleged or at all.

12.

He has not been paid his remuneration for the period for which he was reinstated in service after the appellate authority set aside the initial order of dismissal passed by the disciplinary authority.

13.

Learned advocate for the petitioner has placed the relevant Rules mentioned in the article of charges in support of his submission that none could have been invoked against him. 14.

Prayer has been made to set aside the order passed by the Disciplinary Authority affirmed by the Appellate Authority. Further prayer has been made to direct the authority to reinstate the petitioner in service with all consequential benefits. 15.

The prayer of the petitioner has been opposed by the learned senior counsel representing the respondent authorities. It has been submitted that the Inquiry Officer conducted a thorough enquiry and upon proper appreciation of facts and evidence found the petitioner guilty of the charges leveled against him. It will not be proper for the writ court to re-appreciate facts. 16.

The quantum of penalty to be imposed on a delinquent employee is to be decided by the employer. The writ court ought not to specify the quantum of penalty unless the same is grossly disproportionate to the charges leveled. In the instant case the

employee was found to be acting against the interest of the employer and hence, the penalty of dismissal from service has been rightly imposed.

17.

The scope of judicial review of the disciplinary proceeding is extremely limited. Unless of course there is glaring defect in the procedure itself, the writ Court ought not to interfere with the same. It has been argued that the Disciplinary Authority looked into the matter in details, granted reasonable opportunity to the petitioner to defend himself, adduced evidence to prove the guilt of the petitioner, and lastly, upon proper appreciation of the evidence of the witnesses imposed the penalty of dismissing the petitioner from service. The Appellate Authority has affirmed the order of dismissal and the same ought not to be interfered with by the Court. 18.

There is a provision for review in the service regulation governing the petitioner. The petitioner may avail the opportunity of review instead of pressing the instant writ petition. The writ petition ought to be dismissed on the ground of availability of an alternate, efficacious remedy.

19.

I have heard and considered the submissions made on behalf of both the parties. The provisions invoked to pass the order of penalty are Rule 6 of the CCS (Conduct) Rules, 1964 (wrongly mention as 1965 in the show cause notice) read with Rule 27 of the A & N Islands Municipal Service (Classification, Control and Appeal)

Rules, 2008. Rule 6 relates to joining of association by Government servants. The Rule mentions that no Government servant shall join, or continue to be a member of an association, the objects or activities of which are prejudicial to the interests of the sovereignty and integrity of India or public order or morality. 20.

There is no evidence whatsoever to prove the charge that the activities and objects of the association of which the petitioner is a member are prejudicial to the interest of the sovereignty and integrity of the country or public order or morality. No evidence has been adduced to prove that the petitioner was a part of, or in any manner, related to any activity which is prejudicial to the interest of the sovereignty and integrity of India or public order or morality. 21.

On the contrary, the petitioner has clearly mentioned that he is the member of an organization which is dedicated to expose and eradicate corruption in the Islands. Such activity of a government servant cannot, under any circumstances, be held to be against the interest of the country or the society at large. In fact, genuine efforts to expose ill activities and misdeeds which have deep roots in the system of public governance are always welcome. 22.

The next charge is violation of Rule 3 and 7 of the CCS (Conduct) Rules, 1964, Rule 11 of CCS (CCA) Rules, 1964 read with Rule 27 of the A & N Islands Municipal Service (Classification, Control and Appeal) Rules, 2008. Rule 3 lays down the general

instructions which a government servant should follow at all times. There isn't any specific allegation with regard to a particular provision which the petitioner has violated. Rule 7 deals with demonstration and strikes. It mentions that no Government servant shall engage himself or participate in any demonstration which is prejudicial to the interest of sovereignty, integrity and security of the country or friendly relation with foreign States, public order, decency or morality, or which involves contempt of Court, defamation or incitement to an offence or resort to, or in any way, abate any form of strike or coercion or physical duress in connection with any matter pertaining to his service or the service of any other Government servant.

23.

The subject charge was not incorporated in the show cause notice issued to the petitioner. This charge was introduced for the first time in the articles of charge. In the entire proceeding no case has been made out that the petitioner engaged himself or participated in any demonstration or resorted to or abated in any form of strike or coercion. In the absence of any proof in support of the above, the allegation against the petitioner cannot be said to be proved.

24.

The third charge is violation of sub-rule 1 and 23 of the CCS (Conduct) Rules, 1964 read with Rule 27 of the A & N Islands Municipal Services (Classification, Control and Appeal) Rules, 2008.

The charge mentions that the petitioner submits public grievances in the capacity of General Secretary, A & N Islands Handicapped Association making allegation against his own department as well as various departments. He has not obtained permission from the Council to become a member of the said Association. 25.

The provision of the service rules that has been quoted does not match with the allegation leveled against the petitioner. No provision of law has been produced before this Court in support of the charge that the petitioner is required to obtain permission from his employer to become a member of the said association. On the other hand, Rule 6 lays down the restriction of a government servant joining association whose object and activities are prejudicial to the interest of sovereignty and integrity of the country or public disorder or morality. In the absence of a specify bar to join any association it is always open for an employee to become a member and obtain membership of such association whose object and activities are not prejudicial to the interest of sovereignty and integrity of the country or public disorder or morality.

26.

The next charge is of violation of Rule 32 (2)(a) of the CCS (Leave) Rules, 1972; the same relates to extra ordinary leave. The charge mentions that the petitioner is in the habit of leaving work place during office hours without knowledge or permission of his superiors. On two particular dates when inspection was conducted

by the Administrative Officer, the petitioner was found not to turn up for duty till 3.30 PM. The aforesaid charge may, at best, be taken as late reporting to duty. No case has been made out that the petitioner is a habitual latecomer or that he absents himself from work without obtaining leave. No evidence has been adduced to show that he did not report to work on time on regular basis or that he was on unauthorized leave. In the absence of proper evidence, the aforesaid charge against the petitioner also fails. Moreover, the said charge was not mentioned in the show cause notice and has been mentioned for the first time in the article of charges. 27.

The last charge is violation of sub-rule 23 of Rule 3 of the CCS (Conduct) Rules, 1964 read with Rule 27 of the A & N Islands Municipal Services (Classification, Control and Appeal) Rules, 2008. The allegation is that the petitioner acted as self-styled Secretary of Public Grievance Cell, A & N Islands without authority of law and valid documents and cheated the general public of the Islands. He made fictitious complaint against the staff of the Directorate of Science and Technology alleging that they accepted bribe while issuing pollution under control certificate to private vehicles. 28.

Rule 3-C (23) mentions about the acts and the conduct of a government servant which amounts to misconduct. There are as many as nineteen acts mentioned in the said Rules which may amount to misconduct. Without pinpointing the particular Rule(s)

which the petitioner is alleged to have violated, the authority cannot prove the misconduct leveled against an employee. Omnibus charge cannot be leveled against an employee to dismiss him from service. 29.

To bring home a charge against an employee, the article of charges should be absolutely specific. There cannot be any vagueness in the charge leveled because the charged officer should know the exact charge that he is to defend. In the absence of specific charge, the entire inquiry gets vitiated. Not mentioning proper details in the charge sheet, thereby not providing opportunity to the charged officer to defend such charge, amounts to violation of the principles of natural justice.

30.

On a bare reading of article V of the article of charges it appears that the charge is of cheating general public. Cheating is an offence punishable under the criminal laws of the country. There is no document placed before this Court where complaint has been lodged against the petitioner before the police on such charge. Neither any evidence adduced from any member of the general public to prove such charge. Apart from making bald allegation of cheating, there is no evidence in support of such charge. 31.

To prove the said charge the authority ought to have collected and relied upon evidence of some member of the public that such incident did take place. Public in general means ordinary persons. The authority ought to have obtained evidence from at least one of

such public testifying against the petitioner so that the petitioner could have got the opportunity to cross examine him. Not a single evidence has been produced in support of the said charge. 32.

The petitioner has himself averred that he is the member of an association which is involved with eradication of corruption. The Court does not find any misconduct on the part of a government servant if he reports of any corruption against any officer of the same department or any other department. There is no rule that an employee cannot lodge complaint against another employee of the same department alleging corruption. Illegal activity and corruption spreads across all levels of the society and the same cannot be only in respect of any particular department. Only because the petitioner reported against an officer of the department for accepting bribe, he ought not to be penalized, that too, with capital punishment. 33.

Rule of the & N Islands Municipal Services (Classification, Control and Appeal) Rules, 2008 is the saving clause which is a general proposition and it mentions that any matter where the provisions are not laid down in the said Rules, provisions of the CCS (CCA) Rules and the instruction of the Government of India applicable to the Government servant of the A & N Administration shall be applicable. The same is a legal provision and cannot be the subject matter of the article of charges.

34.

It is settled law that the writ Court is not the proper forum to re-appreciate evidence in a disciplinary proceeding conducted by an employer, but the Court can always ascertain as to whether the penalty that has been imposed is upon proper appreciation of evidence adduced by the parties. On going through the documents placed before this Court, it appears that the evidence adduced to prove the charges against the petitioner has not been appreciated at all in its proper manner. The evidences, does not in any manner, prove any of the charges leveled against him. In fact, in respect of certain charges there is no evidence at all.

35.

The Court is left wondering as to whether the petitioner has been penalized only because he pointed figures towards the misdeeds and ill activities of some of the officers of the Administration. Steps have been taken against him for exposing corruption in the Administration. Law provides for protection and safe guarding of the whistle blowers who brings to fore the wrongdoings and illegal activities in the work place.

The Administration ought to appreciate the effort taken by any person whose speaks the truth and has an honest intention to fight corruption. The employer ought not to adopt retaliatory measures and tactics to throttle the voice of the protesters. Instead of penalizing such persons they ought to be protected and their work should not only be appreciated but at the same time encouraged.

36.

The Court is of the considered opinion that as none of the charges leveled against the petitioner can be held to be proved, the question of imposing penalty against him does not arise at all. 37.

The respondents have relied upon the provision for review. In the facts and circumstances of the instant case remanding the petitioner to avail such remedy would not be proper particularly because of the fact that in the absence of proper evidence the reviewing authority will not be left with any material to adjudicate the charges leveled against the petitioner. Review will be an empty formality and sheer wastage of time and resources of the authority. Availability of an alternate remedy in not a complete bar to move a writ petition.

38.

It appears that the authority was in a hurry to remove the petitioner from service. The show cause notice issued to him mentions incorrect year of the Act relied upon to penalize him. The CCS (Conduct) Rules is of the year 1964, the same has been incorrectly mentioned as 1965. The initial show cause specified only two charges; whereas, the article of charges contained five charges. The authority ought to have restricted the disciplinary proceeding to the allegations mentioned in the show cause notice and ought not to have expanded the scope of the enquiry by adding in more charges without granting further opportunity to the petitioner to reply to the same.

39.

In view of the discussions made herein above the entire disciplinary proceeding fails. The order of the Disciplinary Authority imposing penalty on the petitioner and the order of the Appellate Authority affirming the same both are set aside and quashed. The Administration is directed to immediately reinstate the petitioner in service with all consequential benefits. The service benefits of the petitioner for the period when he was reinstated by the order of the Appellate Authority upon setting aside the order of the Disciplinary Authority shall also be cleared. The financial benefit of the petitioner shall positively be cleared within six weeks from the date of communication of this order.

40.

The writ petition stands disposed of.

41.

No order as to costs.

42.

Urgent certified photocopy of this judgment, if applied for, be supplied to the parties expeditiously on compliance of usual legal formalities.

( Amrita Sinha, J. )